rity of the Federal judgeship and the security of the retirement? You know, I think I'm a good legislator, but I don't have that security. I run back every 2 years. I wonder how, in looking at your overall picture, what security you place on your position on your retirement? Judge THORNBERRY. I can answer that, I think. I was in your position for 15 years and I have enjoyed the security of the judgeship much more than the lack of security I felt every time it was time to attempt to renew my 2-year contract with the people of the 10th District of Texas. I must say that, as the years went by as a Member of the House and I continued my contribution to the retirement fund, it did add to my feeling of security to know that if I were defeated or retired voluntarily and I think this is an important point, if I may make it-after my length of service, I could have considered accepting private employment and started drawing my retirement and those two together would be much more today than I'm receiving as a Federal Judge.

But I don't deny that there is security in being a Federal judge. And we all accept that. But the only thing that bothers meand I'll try to say this, and I think all of you recognize that is that a consideration was involved at the time we became judges, that we had this fund, we had made contributions to it, and in my case absolute assurance that I would receive it, and I can again say that security was involved.

Mr. JENRETTE. I think you've heard from my seniors and elders in their comments about trying to reach a middle ground. I certainly feel that you have a vested interest in what you put in and I can't vote to change that without giving you that security. However, I wonder if we pass this amendment with the prospective provision that you suggested, Judge Thornberry, what it will do to our trying to find good Federal judges in the future?

Judge Thornberry. Well, I must not have made myself clear. I said that if you felt that you had to pass the legislation. I thought you should make it prospective. But I wondered if you really wanted to do it and affect Members of Congress who might have the opportunity to become Federal judges. I would not. I would not recommend that you pass the bill to that effect. But all I'm asking is, in view of the fact of what our experience has been, if you think you have to pass legislation of that kind, vou should make it prospective.

Mr. HENDERSON. Would the gentleman yield for a moment?
Mr. JENRETTE. Surely.

Mr. HENDERSON. Let me touch on another point that I think is very important here. I must agree with what Judge Harris said about the services that the Members have contributed. I think you were really speaking about the ability to perform as a judge, and I don't think there has been any doubt in the minds of any of us who served with you and Judge Thornberry that this is absolutely true, and, Judge Bennett, I'm sure that your service in the civil service was helpful. But surely if we look at the present situation and conclude that we don't pay our Federal judges an adequate salary: we should act separately on that. Certainly the retirement benefits of the surviving spouses of our Federal judges, we've all agreed, is a disgrace.

Judge THORNBERRY. I certainly agree with that. I'm not here to beat the drums one way or the other on increasing the salary, but if you don't increase the salary to attract people from the private sector and the

Mr. HENDERSON. I'm wondering how the American public would react if they really knew-and they don't know, Judge Harris-that you are serving almost without compensation.

Judge HARRIS. Well, it would be nice to play golf occasionally and go fishing once in a while.

Mr. HENDERSON. Take the case of Judge Thornberry. There's no doubt in the minds of those of us who knew you that when you went to the bench, you served at a sacrifice, from a financial standpoint. The same is doubtlessly true of other Members of Congress. And yet I dare say that most people feel that you took a big, lush job.

Thank you, John, for yielding.

Mr. JENRETTE. Thank you, Mr. Chairman.

Expanding on the commentary of the chairman, I too, understand, as a fairly successful trial lawyer, successful in monetary means, not in cases, necessarily the monetary sacrifice that they take. But trying to tell that guy that's been unemployed for 6 months and that's going to vote for us this year, that thinks that the Federal judges ride around in limousines and wear pointed hats and sit up there with a great deal of security, puts us-as all of you gentlemen have served in this body before know-in a difficult situation when you talk about pay raises. It comes to, and I think that probably what Chairman Henderson was getting at is that somewhere in our service, we must find a way to educate the public and we need your help in doing that. We need to show the public the sacrifices that one is making in taking a job such as you have, and let them join with us in wanting to see that the best possible people are sitting on that bench. We might make the laws, but your interpretation is reflected just as much on their livelihood and their lives as our legislation does.

I think that probably this committee and I hope I'm on it for a while-has an obligation and responsibility to see that many of these inequities are brought to the proper attention of the public. Not just a bias presentation by the press, who will jump on double-dipping or report that you don't give a guy the proper sentence that they think you ought to give him.

So I've learned something today and I appreciate all three of you contributing to my limited education.

Thank you, Mr. Chairman.

Mr. WHITE. Thank you, Mr. Jenrette.

Judge HARRIS. May I respond to just one question that was asked a moment ago and that was about the security of Federal judges having article 3 appointments and the general salaries. When we increased the salaries of Members of Congress a good many years ago

Mr. JENRETTE. I'm not opposed to that. [Laughter.]

Judge HARRIS. Brooks Hayes was here some of you remember Brooks Hayes and he was asked by one of his constituents if he thought that raising the Members' salaries would contribute to us getting more able Members to serve in the Congress of the United States. Well, that was sort of a self-serving declaration type of ques

tion, and he said, "Well, no"-and Brooks always could come back, one of the best-he said, "No, I don't think it would, but I think it will encourage those of us who are there to want to stay." [Laughter.]

Mr. WHITE. We appreciate you gentlemen appearing before the subcommittee this morning. It seems to me that, after hearing the discussion this morning, if we act on this bill, the action will have to apply prospectively.

The question appears to be whether or not to defer any annuity while on the active bench. I have always felt that if anyone pays for an annuity, that person is entitled to the money when their eligibility for retirement comes.

I never have been one to think that social security should be cut, because whether the wife or the husband work, or some other program comes into play like veterans benefits or anything else, they have paid for it and I think they ought to get it.

Judge HARRIS. Thank you, Mr. Chairman, and if we can be of any further assistance to you, we're subject to your call.

Mr. WHITE. Thank you very much, gentlemen.

The prepared statements which were submitted to the subcommittee by the gentlemen here this morning will be made a part of the record at this point.

[The statements referred to follow:]

PREPARED STATEMENT OF JUDGE MARION T. BENNETT, U.S. COURT OF CLAIMS

Mr. Chairman and Members of the Committee, my name is Marion T. Bennett. I am an Associate Judge of the United States Court of Claims. I have the honor to have been designated to testify here on behalf of the Judicial Conference of the United States, a statutory body which speaks for the Judicial Department of the Federal Government. I am authorized to advise you on behalf of the Judicial Department, through the Conference, that it strongly opposed this bill in its present form. We appreciate the opportunity extended by the Committee to present our views, since this bill affects only federal judges.

I am accompanied by the Honorable Homer Thornberry of Texas, United States Circuit Judge for the Fifth Circuit, and by United States Senior District Judge Oren Harris of Arkansas. Before becoming judges both had long, useful careers as members of the United States House of Representatives. They have been better judges for this experience. I also served in the U.S. House of Representatives and with Judge Harris as a member of the House Committee on Interstate and Foreign Commerce, of which he later became Chairman. Our prior Government service, therefore, is somewhat in common. However, as to the pending bill, our attitudes, while shared as to its undesirability for the Judiciary as a whole, may differ in a particular about how it should be amended if reported favorably. It is natural that every man should see the bill from the angle of how it affects him personally. Judge Harris is a senior judge and Judge Thornberry soon will be. Naturally, both are more interested immediately than I about the impact of this bill on them as senior judges. Being in my early sixties, I am more interested in its impact on me right now as a civil service annuitant presently entitled to annuity payment. We will give you our respective points of view to try to help the Committee. But, we all share the Judicial Conference view that the bill should not be enacted. The Conference, due to the fact that it does not meet until next month, has had no time to take any position on suggested amendments to the bill, although through its standing procedures it speaks to the bill as drafted. Such suggestions as we make are our own. Judges Thornberry and Harris are expected annuitants whose annuities are so-called Member annuities. My annuity, on the contrary, is one based on the regular system as it applies to career service other than to Members. My rights vested on July 7, 1972, when I retired and was awarded an annuity based upon 321⁄2 years of creditable service under the Civil Service Retirement Act as an employee. 5 U.S.C. § 8336 (a) (1970).

H.R. 11738 is the product of recent realization by the Civil Service Commission that it has long acted without authority of law in suspending payment of civil service retirement annuities earned by federal judges before they became judges and in paying such annuities only when active judges became senior judges. The Commission has now accepted the legal advice of the General Accounting Office, the Department of Defense, and its own general counsel that it cannot do this without new statutory authority. H.R. 11738 seeks to provide such authority. As I understand it, the bill would in no way affect the rights of survivors of judges whose rights vest when the judge's right to an annuity vests by his age and length of prior service, and accumulate from that date. However, the bill would bar payment of any annuity to the judge himself while he lives and draws the salary of his office. His annuity would be impounded.

There are about four general approaches that it would seem are available to the Committee on the pending bill. First, it can report the bill in its present form, in which case it would appear that payments now being made will be stopped when it becomes law, or by October 1, 1976, whichever date is later. Second, the Committee can amend the bill so that it will apply only prospectively to those who become judges after it becomes law. Third, the bill can be amended to permit annuities to be paid to senior judges only, regardless of the vested rights of those who have already earned and are being paid their annuities and who would be left slowly twisting in the wind until such day as they might survive the mortality tables and become senior judges. Fourth, the bill can be rejected, and that is the position of the Judicial Conference of the United States. Permit me now to address you briefly on these alternatives.

First, some comments as to the retroactive nature of the bill in its present form. It is my impression from conversations with Commission officials and from conversations other judges have had with them, that they do not desire that the bill be retroactive. Upon this assumption, therefore, I would trust that you would agree with them and with us and little more need be said about it. I would only emphasize that in America where we believe in fair play that we do not change the rules of the game in the middle of a contest when it seems to be going against us, and that we do not deprive the winner of his success when he has followed the rules and the game is over. But, that is a literal interpretation of what could happen if the retroactive feature of the bill is permitted to stand, barring all annuity payments to a judge after the bill becomes law, even though such an annuity has already been awarded and is being paid according to law. Congress can, of course, change any law, but it too is subject to certain rules and has surrendered sovereignty by statute so that when it makes an inadvertent mistake or breaches a trust, there is a remedy within the judicial system. I assure you, with greatest respect, that the retroactive feature of the bill suffers from several legal disabilities and doubts in that it would violate vested property and contractual rights, deny due process and equal protection of the law and be discriminatory against a small class of people. But, no one working for the Government could be sure that his annuity would be available at the end of the road of active service if this principle of retroactivity is put into effect by H.R. 11738. The Judicial Department seeks no constitutional confrontation with the Legislative Department, and we trust you seek none with us. Throughout the history of this Nation men of good will, when faced with the possibility of such confrontation, have usually been able to resolve it amicably, and we sincerely believe that to be possible here. As I say, I hope that to be the CSC position as well. Permit me to suggest for your respectful consideration that on line 6, page 2 of the bill, a new sentence be added to read as follows: "Nothing in this section, however, shall bar payment of any annuity to an employee or former member whose entitlement to same has vested before the date of enactment of this amendment." I turn now to the second and closely related proposition-that if the bill is to be considered favorably, it also be amended to be prospective only. That is to say, it should affect only those who accept judgeships after it becomes law. This would seem to be dictated by fair play. There are judges whose rights have not entirely vested by reason of the required age, although they have the required service and have made the contributions in good faith on the promise of the statute that they will be entitled to an annuity in due course. The CSC is holding those contributions without payment of interest, ro in some cases has refunded them on the mistaken notion that it should. The resulting chaos is not the fault of the judges who by this bill are being asked to pay for the CSC error. I must say to you in all candor that I can see no legal impediment to enacting this bill if it is

made to apply to those who, in the future, accept judgeships with eyes wide open to the fact that in so doing they will forfeit payment of annuities while they live, but that their survivors will be protected by their contributions after they are gone.

I think that most of the problems which have arisen under this controversial bill really come to a head under this proposition of whether or not it should affect the rights of judges already in office, especially those who are senior judges and those whose rights vested before senior status. I conceded that a plausible case can be made for the concept that annuities should not be paid to reemployed annuitants, if it is done prospectively. Of course, reemployed annuitants do get their annuities now. But, they are offset against their salaries. This cannot be done to judges because of the clause in the Constitution which prohibits reduction of a judge's salary. The bill would get around that by authorizing suspension of the annuity itself. While there are difficulties with this concept, which reflect the position of the Judicial Conference, which I shall address presently, it cannot be said that from the standpoint of pure equity as opposed to other considerations, it would not be fair to make such a ssupension of payment for judges who take office after the rules have been changed, and provided of course that the rights of their survivors are not affected in any way. Absent such prospective application, there are obvious legal difficulties. These can be avoided by a clarifying amendment to follow the one I have already suggested for page 2, line 6, of the bill, and reading: "This amendment shall be effective only as to justices and judges who assume their offices after the effective date hereof."

The same result can be accomplished by the following amendment: On page 3, line 2, strike the period and insert "and to justices or judges taking office after the latter of such dates."

The Committee will recall that in the 93d Congress a new law was enacted (Pub. L. 93-406, 88 Stat. 829, The Employee Retirement Security Act of 1974) whereby workers in the private sector who move from one job to another will not lose their accumulated annuity rights. It would be strange indeed if people who have long worked for the Government should be discriminated against by being accorded less protection. The Committee has been vigilant in recent years in seeing to it that the Government worker has comparability of treatment with privately employed workers. This being so, there is no apparent viable reason to submit some government workers to a different standard because they heed the call to work in a different and constitutionally separate department of Government under a different retirement system.

Third, what about the idea that it is permissible, notwithstanding all the foregoing, to strip such a worker of his vested rights but restore them when he reaches some magic age beyond normal life expectance-such as when he may qualify for senior-judge status? I fear that this makes a mockery of equal justice. It is playing statistical roulette with the mortality table as the gun. It ignores the fact that a handful of judges by reason of early and long Government service have already earned annuities, payment of which is mandated by the law. There has never been any legal basis for payment of a civil service annuity to a senior judge if it could not be paid to an active judge. The Commission now knows this and admits it. Further, payment of Member annuities is prohibited to judges, active or retired, under existing law. 5 U.S.C. § 8344 (B) (1970). This is an unsupportable discrimination. Finally, the principle against dual payment of salary and annuity is the same for an active as for a retired judge because his salary continues in retirement or senior-judge status. The judges really cannot approach this problem severally. The simple and legal answer is to pay them whatever their annuity vests. That is a legally enforceable right. If the right is to be modified by legislation, then it must be done prospectively to all to be legally and morally right.

My remarks have to this point been confined to suggested modifications to the bill to clarify it and assure its legality should the Committee elect to report it. But, I turn now to the basic position of the Judicial Department that the bill should be rejected in toto. The federal judges strongly believe, and sincerely urge you not to report this bill at all for the following principal reasons:

(1) This bill would discourage individuals experienced in government affairs from going into the Judiciary by requiring a forfeiture of their earned annuities if they do so. Whatever money this will appear to save, and there is really no way to project it, will be more than offset by the disadvantage to the Nation in depriving it of judges who have accumulated wisdom and expertise in the com